George Crane Morehouse.

The supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe online

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Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 42 of 96)
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non-feasance or misfeasance, for their official acts or delinquencies.

Relator, an overseer of highways, under the direction of the commissioner of
highways, removed obstructions from what was supposed to be a public highway.
The owner of the land brought an action of trespass, which the relator, without
notice to the town or any of its officers, defended, and a judgment for |35 dam-
ages was rendered against him ; he appealed to the general term and the court of
appeals and the judgment was affirmed. Relator then presented a claim to de-
fendants for $2,711.47 for his expenses and disbursements, which the board re-
fused to allow. Held, that he was not entitled to a mwndamus compelling the
audit and allowance of the claim.

People, exrel. Tan Keuren, v. Town Auditors, 1i N. Y. 310.

The Revised Statutes (vol. 1, p, 558, § 8), declares in terms, "Judgments
recovered against a town shall be a town charge." The judgments recovered
by Plati, by virtue of that provision of the statute, are declared to be a towji
charge, and being a town charge they fall within the provisions constituting the
machinery for the collection of town charges, to-wit: Assessment and levy upon
the taxable property within the territory of the township.

That the statute of 1881, known as an act for the protection of tax payers (Laws
of 1881, chap. 531), does not apply to the case in hand. It was passed to pre-
vent fraudulent recoveries of judgments by default or by collusion, not for the
purpose of giving every tax payer within the limits of the town the right to
litigate afresh questions fairly, fully and honestly pre.sented by way of defense
and solemnly adjudicated adversely to the town.

That notwithstanding the act of 1881, the judgments recovered by Piatt, the
creditor, against the town of Orleans are conclusive upon the town of Orleans,
and it is the duty of the board of supervisprs of Jefferson county to apply the
provisions of the law relating to the collection of judgments, and to place upon
the schedule of the town a sum sufficient to pay and liquidate the judgments so
recovered by Piatt, the creditor.

Lee V. Board of Supervisors of Jefferson County, 62 How. 202; People, ex rel.
Allabes, v. Supervisors, 12 id. 50.

Where an appeal from an order of removal of a pauper was entered in a court
of general sessions previous to the repeal of the ' ' act for the relief and settlement
of the poor," it was held, that the appeal might be prosecuted and completed under
the repealed statute, by virtue of the saving clause in the general repealing act.

And that the award or determination of the sessions as to the payment of the
costs and expenses is, within the meaning of the act, " a judgment rendered " au-
thorizing the supervisors to cause the amount thereof to be levied.

And iteeems that adjudications of superintendents of the poor, and of justices
of the peace, which are to be enforced in like manner, would also for this purpose
be considered judgments.

The Overseers of the Poor v. Supervisors, 14 Wend. 71.

A public officer liable to be sued for services rendered by plaintiff may confess
a judgment therefor. The supervisors are not concluded by the judgment, they
have the right to go behind it and inquire whether the whole or any part of the
cause of action was a county charge.

Gerev. Supervisors, 1 How. 255.

Claims for money expended in an action brought by the commissioner of highways
in his official name and for satisfying a Judgment against himself in such an ac-
tion, may also be audited and passed on by the board of town auditors.

The above statute nor section 1931, Code Civil Procedure, does not impose an
absolute liability on towns for judgments against the commissioner in such

People, exrel. Meyers, v. Barnes, 21 N. E. Eep. 789.

For eaypenses, judgments, etc., in relation to roads and bridges,
see chapter XIV, post.

380 SuPERVisoKS' Mas-ual.

For other town charges, see §§ 459-474.

For judgments against a town, which town was subsequently
divided or altered, see § 132, ante.


§ 459. To Audit Accounts for Sheep Killed
by Dogs.

TaiX on Dogs. — The taxes hereafter to be levied upon dogs
in the county of Ontario shall be levied and collected at the time
and in the manner directed by sections 1 and 2 of chapter 244 of
the Laws of 1862.

Chap. 197, Laws of 1864, 8 1.

Section 1 of chapter 244, Laws of 1863, amended tlie Revised Statutes in rela-
tion to the taxation of dogs (Part 1, chap. 30, title 17, § 1). This section of tlie
Revised Statutes was amended by chapter 466, Laws of 1889, and is set out in
full at section 102, ante. Seetion 2 of chapter 244, Laws of 1862, is the same as
section 4 of the Revised Statutes and is set forth in full at section 103, ante.

Application of Proceeds of Tax by Super-
visor. — The collector of each town, shall pay over the taxes so
collected to the supervisor of the town, and the moneys so collected
and paid over shall in each town constitute a town fund for paying
the damages arising in said town, from dogs killing or injuring sheep ;
and such moneys, or the balance thereof, which shall remain in the
hands of the supervisor of any town for the period of one year, may
by a vote of the majority of the electors of any such town at any
town meeting, be appropriated for the purpose of building and re-
pairing roads and bridges, or for the payment of the contingent ex-
penses of such town.
Id., § 2.

Duties of Fence Viev^ers.

The owner or owners of any sheep or Iambs that may be killed or injured by
dogs may apply to any two fence viewers of the town, who shall inquire into the
matter and examine witnesses in relation thereto, for which purpose either of them
shall have power to administer oaths, and if they shall be satisfied that the same
were killed by dogs, and in no other way, they shall certify such fact, the number
of such sheep killed and the number injured, the value of such sheep killed or
injured immediately previous to such killing or injury, together with the value
of the sheep after being so killed or injured, together with the amount of their

Id., «S.

Tcwu Auditors' Duty.

Such certificate shall be presented to the board of town auditors at their annual
meeting for auditing town accounts, who shall have the same power in auditing
or allowing the same as in regard to town accounts; and if such board shall be
satisfied, by the oath of the person claiming such damages, that such claimant has
not been able to discover the owner or possessor of the dog or dogs by which such
damage was done, or that he has failed to recover his damages of such owner or
possessor, they shall give an order on the supervisor of the town for the amount

AuDiTiNo OF Accounts. 381

which they shall allow, who shall pay such order out of the funds arising from
the provisions of this act.

Id., 6 4.

Tax for Sheep Killed.

Whenever the amount of the order or orders for damages, given by the town au-
ditors to the owner or owners of sheep killed or injured by dogs, shall exceed the
amount of the dog fund in the hands of the supervisor of such town, it shall be
lawful for the board of supervisors to add to the accounts of said town, the amount
of such order or orders then due and unpaid, but such sum shall in no case exceed
the amount theretofore received into the dog fund of said town, and diverted there-
from for the purpose of building and repairing roads and bridges, or for the pay-
ment of contingent expenses of such town, for the three years next preceding the
date of such order or orders.

Id., § 5; added by chap. 228, Laws of 1878.

When O-wner to Refund.

If, after receiving the amount of such damages from the supervisor, the owner
of the sheep so killed or hurt shall receive or recover the value thereof from the
owner or possessor of the dog or dogs doing said damage, he shall refund and
repay to the supervisor the sum so recovered, for which it shall be the duty of the
supervisor of the town to bring an action against such person, in case of his re-
fusal, in his name of office; which sum, when so received and recovered, shall be
returned to said dog fund.

Id., § 6.

The supervisor is hereby required to account to the town auditors for moneys
received and disbursed by him in pursuance of this act

Id., 57.

Whenever the board of supervisors of any county of this State shall, by resolu-
tion, declare that the provisions of this act shall be extended and made applicable
to said county, the provisions of this act shall thereafter be applicable to such

Id., § 8.

§ 460. Justices of the Peace and Constables'
Fees in Criminal Cases Charg-eable to a Town.

— The fees of justices of the peace and of constables, for all fees
chargeable to a town, in criminal cases, are town charges and to be
audited by the board of town auditors.

The following is the law :

All fees and accounts of magistrates and other officers for criminal
proceedings, including cases of vagrancy, shall be paid by the several
towns or cities wherein the offense shall have been committed, and
all accounts rendered for such proceedings shall state where such
offense was committed, and the board of supervisors shall assess such
fees and accounts upon the several towns or cities designated by
such accounts ; but when any person shall be bound over to the oyer
and terminer, or court of sessions, or committed to jail to await a

382 Supervisors' Makual.

trial in either of said courts, tlie costs of the proceedings had before
. the single magistrate shall be chargeable upon the towns or cities
as aforesaid, and the costs of the proceedings had after the person
shall have been so bound over or committed, shall be chargeable to
the county ; but nothing herein contained shall apply to cases of
felonies, nor where the proceedings or trial for the offense shall be had
before any court of oyer and terminer or court of sessions of the
county, and the fines imposed and collected in any such cases shall
be credited to said towns or cities respectively. And whenever any
criminal warrant or process shall be issued by any magistrate resid-
ing out of the town or city wherein the offense shall have been com-
mitted, it shall authorize the officer executing the same, to carry the
person charged with an offense under this act, before any magistrate
resident and being in the town or city wherein such offense shall
have been committed, to be proceeded against according to the pro-
visions of the fifteenth section of this act ; but the magistrate issu-
ing such warrant or process shall not lose any jurisdiction over the
trial and proceedings against any such persons by reason of any
thing herein contained, nor shall such magistrate be allowed any
compensation for any further proceedings in any case beyond issu-
ing such warrant.

Laws of 1815, chap. 180, § 26, as amended by Laws of 1847, chap. 455; 1 B, S. 846.

The "fifteenth section of this act," referred to above, was re-
pealed by chapter 593, Laws of 1886. The Code of Criminal Pro-
cedure authorizes a magistrate to issue his warrant anywhere in his
county, and makes it returnable before the magistrate issuing the
warrant. This would seem to supersede so much of the above sec-
tion as requires the prisoner to be taken before a magistrate resident
in the town or city wherein the offense was committed. The Code
expressly prescribes the firm of the warrant, and in the '^/orm
prescribed" it says "you are therefore commanded, forthwith, to
arrest the above-named C. D. and hring him before me.' '

Code of Crim. Proc, § 151.

And " if the crime charged in the warrant be a felony, the officer
making the arrest must take the defendant before the magistrate
who issued the warrant, or some other magistrate in the same county
as provided in section 164."

Id., 5158.

And section 164: provides that the prisoner may be taken before

Auditing of Accounts. 383

the nearest or most accessible magistrate, if the one issuing the war-
rant be absent or unable to act.

Section 962 provides that this Code applies to criminal actions and
to aU other proceedings in criminal cases, which are herein provided
for, from the time when it takes effect. It would seem that a jus-
tice issuing a warrant under this Code would be entitled to his fees
therefor from the town wherein the offense was committed, whether
the justice resided therein or not.

The rules for distinguishing town from county charges are set out at § 532, '
post. See also § 682, post.

Under Laws of 1847, chapter 455, section 26, providing that all
fees of officers in criminal proceedings shall be paid by the several
towns or cities where the offense shall have been committed, except
in case of felonies or proceedings in any court of oyer and terminer
or court of sessions of the county, a constable's fees for conveying
persons convicted in the special sessions of Yonkers of misdemean-
ors committed in that city to the Albany penitentiary are chargeable
against the city of Yonkers, and not against the county of "West-

People, exrel. McSrath, v. Board of Supervisors, 6 N. Y. Sup. 153.

The above statute was intended only to apply to the fees of local officers in pre-
liminary criminal proceedings in cases under the grade of felony, not to afiect the
liability of a county, after commitment, either for trial or sentence.

People, exrel. Van Tassel, v. Supervisors, 67 N. T. 330.

It does not embrace the fees of the-sherifE as jailer, or otherwise.


The account of a sheriff for receiving prisoners into and discharging them from
jail, and for their board while confined therein, are properly county charges.


This liability of the county iucludes official services in cases strictly criminal,
but includes also quasi criminal offenses, such as violations of city ordinances, the
only distinction being that, in the latter cases, instead of the statutory fee, the
board of supervisors have power to fix the compensation.


See also Eoss v. Supervisors, 38 Hun, 20.

Nb&cconnt of a, justice of the peace or of a constable for services and fees in
criminal cases chargeable to a town, ought to be audited by the board of super-
visors against any town, except upon an appeal duly brought before them.

The only officials having the right to audit these two kinds of accounts against
a town are the town auditors.

As to all other accounts against a town or "town charges " so called, the board
of supervisors seem to have concurrent jurisdiction with the board of town auditors
to audit town charges, except in some cities and counties working under special

The reasons for this statement of the law may be found in " Note A," at the end
of this book.

384 Supervisors' Manual,

§ 461. Form of Justice's Account.

The Town op :

To .Justice of the Peace, Dr.

who resides at town of

The People

), Defendant.

Complainant's name was

Complainant resides at town of.

Offense charged was

On the information filed I issned a

(Oiving the action of justice in the matter.)

Warrant was delivered to Constable

The defendant was arrested

An examination of defendant was had

Witnesses sworn on such examination were aa follows:

Defendant was

(CHving final action of justice in the matter.)

To administering oaths, at 10c

drawing an information 25

taking deposition of witnesses on information

issuing warrant of arrest 25

indorsing warrant from county of 25

warrant of commitment 25

subpoena 25

copies of subpoena for service, at 10c


filing copy of folios, at 5c


drawing undertaking of bail 25

taking acknowledgment

days' attendance in hearing or examination

necessary adjournments

venire 25

swearing witnesses, at 10c

swearing jury 25

(And so on with each item.)
Total $ —

Auditing of Accounts, 335

Oneida ComtTT,

being duly sworn, says that lie Is the

claimant above named; that the items of such account above set forth are correct'
and that the services charged therein have been in fact made or rendered or nec-
essary to be made or rendered; that no part thereof has been presented to any
preceding board of audit for audit, and no part thereof has been paid or

(Signed) .

Sworn to before me this day

of 188..

Oneida County, N. Y.

The account must be presented to the board of town auditors The board of
supemsors have no right to audit such account, or any part thereof, against a
town — except on appeal. , e » ■•

The justice must make the report prescribed bj' law. See § 632.
For Form of, see § 533A.


The Town of :

^ To Constable, Dr.


The People
A. B.

Warrant issued by ,

Offense charged

Offense committed in town of

Defendant arrested at

Distance actually and necessarily traveled to arrest said defendant going from

to , ■. . . .and returning miles

To serving (insert name of precept served) on said defendant at

To taking said defendant into custody on mittimus

To miles traveled in going from to (Utica or Rome jail,

as the case may be) in order to deliver said defendant.
To taking charge of jury.

To keeping prisoners days.

To notifying complainant, complainant's name was

and he resides at

The services herein were rendered by the direction of

The said defendant was (discharged or committed or bailed as the case may be) by

said magistrate.

Travel fees are to be computed from the place where mandate or process is
served or executed, to the place where it is returnable unless a different rate is
specially prescribed by statute; where two or more mandates are served or exe-
cuted in one special proceeding, or against two or more persons in one action or
proceeding, the constable is entitled, in all, to only ten cents for each mile
necessarily traveled.

Code of Civ. Pro., §§ 3332 and 3323.


386 Supervisors' Manual

A constable, who cliarges any traveling fees, mv^t show hy affidavit that the
travel was necessary to perform the service with respect to which it is charged;
that no more miles are charged for than were actually and in good faith traveled
for that purpose; that he had, at the time, no other ofiScial or private business
upon the route so traveled, and that the traveling fees are charged upon one man-
date only, which must be attached or described in the affidavit.

Id., § 3324.

The above section probably relates to civil cases. There was formerly a particu-
lar form of affidavit required in criniinal cases by chapter 830, Laws of 1869,
which act has since been repealed.

People, exrel. Millspaugh, t. Town Auditors, 1 How. (N. S.) 226.

For Fees and Rules, see Fees of Constables, in last chapter, post.


The People

A. B.

Subpoana issued by

Offense charged was

Numoer of names in precept

Number of persons upon whom served ;

Place where each witness was served was as follows:

Number of miles actually traveled to make such services, going and returning,

and not separate mileage for each witness

Notifying complainant

Precept returned to

Offense was committed in town of „ at

Oneida County, J "

I {insert name of person making the affidavit), being duly sworn, do depose and

That the items of the foregoing account are correct, and that said account, or
any part thereof, has not beeen presented by me or by any one in my behalf to any
preceding board of auditors for audit; that the disbursements and services
charged therein have been in fact made or rendered, and that no part thereof has
been paid or satisfied; that the travel charged in serving the process in each of
the above-entitled cases was necessary on the process on which it was charged,
and that no more miles are charged for than were actually and in good faith trav-
eled on the execution of such process; that at the time I executed said process I
had no other private official business on such traveled route, and that the charge
for going and returning is made only upon one process, which process is attached
or described la this account and affidavit.


Sworn to before me, this day"l

of 188.. 1

C. D., (

Justice of the Peace, Oneida County, N. Y. J

Auditing of Accounts. 387

§ 463. Statement Witli Account as to Ser-

To THE Honor ABLE the Boabd of Town Auditoks:

Tlie undersigned, J. D., hereby presents a just and true statement of the nature
of the services performed by him, and of the time actually and necessarily devoted
to the performance of such services, on which such account is based (give detailed

Dated, etc. (Signed.)

Eensselaer CotTNTT, ss. :

J. D., the person named in the foregoing statement, being duly sworn, says,
that the foregoing statement is a, just and true account of the matters therein
.set forth.

Sworn before me,- etc. (Signed.)

§ 464. Costs. — In an action or a Bpecial proceeding brought
in the name of the people to recover money, or property, or to estab-
lish a right or claim, for the benefit of a city or town, if costs be
awarded the defendant they are a town cliarge.

Laws of 1832, chap. 246; SB. S. 2463; Code of Civ. Pro., § 3213.
But see payments, costs, etc., ante, § 458.

§ 465. Town Bonds.

See chapter XV, post.


The commissioners appointed under and by virtue of the several acts to facili-
tate the construction, of railroads in this State * * * are hereby required to
present before the board of auditors of their respective towns, cities or villages
whose duty it is annually to examine and audit the receipts and disbursements of
■either town, city or village officers, at each annual meeting of said boards of
town auditors or the auditing board in any city or village, all such bonds and
■coupons thereof which have been paid by them respectively during the year then
■ending ; also to render a written statement or report, annually, to said board,
showing in items all their receipts and expenditures, with vouchers, * * *
-all interest or earnings accruing from loans or deposits shall be credited to their
respective towns, cities or villages and accounted for in their annual settlements
with said boards of auditors.

Laws of 1871, chap. 537, as amended by Laws of 1882, chap. 293, § 1 ; 1 R. S. 877.

It is their duty to loan on proper security or collaterals, or deposit in some solvent
bank or banking institution, at the best rate of interest they may be able to obtain,
or invest in the bonds of their respective towns, all moneys that shall come into
thejr hands by virtue of their oiflce and not needed for current liabilities.

For form of report, see ante, % 59.

§ 466. Cancellation of Bonds and Coupons.

It shall be the duty of the several boards of town auditors, or any auditing board
in the cities or villages of this State, before whom such bonds or coupons thereof
may be nresented in pursuance of section 1 of this act, to cancel the same by

388 Supervisors' Manual.

cutting out a portion of each bond or coupon so presented, in such manner as to
effectually prevent the repayment of the same.

Id., § 2.

All bonds and coupons so presented and canceled shall be deposited for safe-
keeping and future reference in the office of the clerk of the county in which
such towns, etc., are respectively situated, and said board of town auditors, etc.,
shall prepare and sign a certificate, showing a full description of all bonds or cou-
pons so canceled and deposited by them, and shall file said certificate in the office
of the clerk of their respective towns and villages, and in cities in the office of
the clerk of the city.

Id., I 3.

By chap. 552, Laws 1870, the supervisor is required to report as to town debts,
etc. The law is at § 59, ante. Section 5 provides that " all such bonds and cou-
pons thereof paid, shall be cancelled and burned by the town auditors of the
town, at a meeting thereof to be held for that purpose within ten days previous
to the annual town meeting; and a record thereof shall be filed, signed by said
board, in the office of the clerk of said town."

§ 467. Commissioners to Keep Records, Pay
Bonds, etc.

The commissioners are required to pay the principal and interest of said bonds
at maturity, and to cancel the bonds and interest coupons by cutting out a portion,
thereof; to keep a full record of all bonds and interest coupons paid and canceled,
which record shall be at all times open to the inspection of the supervisor, mem-

Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 42 of 96)